STATE v. DEMPSEY

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Supreme Court of Georgia.

The STATE v. DEMPSEY.

Dempsey v. The State.

Nos. S11A1875, S11X1876.

-- March 23, 2012

In case number S11A1875, the State appeals the trial court's order granting Lewis Dempsey's motion to quash indictment number 10–CR–003–DB. In case number S11X1876, Dempsey cross-appeals the trial court's earlier denial of his motion to quash indictment number 09–CR–325–MM. For the reasons that follow, we affirm in S11A1875, and reverse in S11X1876.

After a longstanding property dispute between Dempsey and Dillard Jewell Crane, Dempsey fatally shot Crane on September 7, 2009; Dempsey admitted the shooting, but claimed self-defense. On November 10, 2009, during the August 2009 term of the Lumpkin County grand jury, indictment number 09–CR–325–MM (“first indictment”) was returned, charging Dempsey with malice murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony. On December 17, 2009, Dempsey moved to quash this indictment because those persons who had been summoned for the August 2009 term of the Lumpkin County grand jury included Ralph Prescott, an elected member of the City Council of Dahlonega, who not only sat on the grand jury, but served as its foreman. In an order of January 4, 2010, the trial court denied Dempsey's motion to quash, but nonetheless ordered Prescott removed from future service on the grand jury.

The next day, January 5, 2010, the State sought to indict Dempsey for the same crimes; the grand jury, composed as before, but without Prescott and one other absent juror, returned indictment number 10–CR–003–DB (“second indictment”). The State also moved for an order of nolle prosequi as to the first indictment, which was granted on January 14, 2010. Dempsey then moved to quash the second indictment, which was granted.

1. In the cross-appeal, Dempsey contends that the trial court should have granted his motion to quash the first indictment. That is correct. As an elected local government officeholder, Prescott was ineligible to serve on a grand jury under OCGA § 15–12–60(b)(1).1 And, it is uncontroverted that he nonetheless served on the grand jury that issued the first indictment against Dempsey.2 This Court long ago recognized that “[i]f a grand juror is not qualified under the law to serve as such, his presence would vitiate the action of the body.” Betts v. State, 66 Ga. 508, 514(6) (1881). See also Reich v. State, 53 Ga. 73, 75 (1874), wherein a grand juror was ineligible to serve as he was not a citizen. “[I]t is now well settled that the incompetency of one grand juror renders an indictment void, no matter how many unexceptionable jurors join with him in finding the bill.” Crawford v. Crow, 114 Ga. 282, 287, 40 S.E. 286 (1901). See also Harper v. State, 283 Ga. 102(1), 657 S.E.2d 213 (2008) (Service on the grand jury by one never actually selected for that service would “require a new indictment.”).

Nonetheless, the trial court denied Dempsey's motion to quash the indictment, stating that it did so because Dempsey did not file his motion to quash before the indictment was returned, and did not show that he was without actual or constructive knowledge of the illegality of the grand jury's composition. Such was, for many years, a proper analysis under our law. See, e.g., Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975) (“In order for such a motion to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. [Cits.]”); Simmons v. State, 226 Ga. 110, 111(1)(a), 172 S.E.2d 680 (1970); Folds v. State, 123 Ga. 167, 168–169, 51 S.E. 305 (1905). However, that is no longer the case. In 2003, our General Assembly enacted what now appears as OCGA § 17–7–110. See Ga. L.2003, p. 154, § 2. OCGA § 17–7–110 reads in toto: “All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” It is uncontroverted that no arraignment had occurred when Dempsey filed his motion, and thus it was filed before the statutory deadline.

Despite the clear language of OCGA § 17–7–110, the State asserts that “all” does not mean “all” in this context, and there remain some motions which must be filed at a time earlier than that set forth in the statute. As authority for this proposition, the State cites cases decided after 2003 in which motions have been allowed after the time period set forth in OCGA § 17–7–110. See State v. Reid, 298 Ga.App. 235, 237–241(2), 679 S.E.2d 802 (2009) (violation of a constitutional right to speedy trial asserted after the time set forth in OCGA § 17–7–110); Atkins v. State, 291 Ga.App. 863, 663 S.E.2d 286 (2008) (motion in arrest of judgment challenging the sufficiency of the indictment); State v. Shabazz, 291 Ga.App. 751, 752(2), 662 S.E.2d 828 (2008) (demurrer asserting that the accusation failed to charge any offense permitted more than ten days after waiver of arraignment); State v. Barker, 277 Ga.App. 84, 87(3), 625 S.E.2d 500 (2005) (motion for directed verdict on the ground that the statute of limitation barred the prosecution was not bound by the time limit of OCGA § 17–7–110). While there may be a constitutional or other right to make a certain motion after the time period set forth in OCGA § 17–7–110, that does not mean ruling that a motion filed within the time period set forth in OCGA § 17–7–110 is untimely. Under the plain language of the statute, any pretrial motion will be considered timely if made before ten days after the date of the arraignment; some motions may be cognizable after that time, but determining the timeliness of such must rest upon other authority.

Nothing in Langlands v. State, 282 Ga. 103, 106–107(3), 646 S.E.2d 253 (2007), alters this analysis. Although Langlands repeated the historical standard that a challenge to the grand jury's composition “must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned,” Langlands did not turn upon that point: it was specifically noted that the challenge to the composition of the grand jury was “untimely because it was not filed within ten days after the arraignment, as required by OCGA § 17–7–110, and the trial court did not extend the time for filing.” Id. at 107, 646 S.E.2d 253. As noted in Palmer v. State, 282 Ga. 466, 468, 651 S.E.2d 86 (2007), in enacting OCGA § 17–7–110, the General Assembly rejected the former judicially-created rule that required special demurrers to be filed prior to arraignment, and created a new rule that seeks a more uniform deadline for the filing of pretrial motions in criminal cases. Id. Because, under OCGA § 17–7–110, pretrial motions are timely if filed before ten days after the arraignment, and Dempsey filed his motion before the statutory deadline, the trial court therefore erred in denying the motion to quash indictment number 09–CR–325–MM, and the order of January 4, 2010, must be reversed.

2. The State contends that the trial court erred in quashing the second indictment. However, it was properly quashed; it is uncontroverted that on January 5, 2010, the grand jury returned a true bill of indictment without hearing evidence. But, a

“grand jury has no right to find any bill or to make any special presentment except upon the testimony of a witness sworn in a particular case in which the party is charged with a specified offense, and in which the oath administered to the witness is substantially the one prescribed by the statute.” [Cit.]

State v. Williams, 181 Ga.App. 204, 206, 351 S.E.2d 727 (1986).

The State relies upon Fields v. State, 260 Ga. 331, 333(3), 393 S.E.2d 252 (1990), for the proposition that, in the second proceeding, “the grand jury was entitled to rely on the evidence it had previously considered in returning the original indictment.” However, Fields is inapposite; there was no question of the illegality of the grand jury itself in that case. Rather, the infirmity in the first indictment, as to which an order of nolle prosequi was entered, was the failure to specify the month and day of the offense. Id. at 332, 393 S.E.2d 252. A second, and correct, indictment “was returned by the same grand jury that returned the original indictment,” id., but without hearing new evidence. Thus, in Fields, the body that returned each indictment was the same; a properly constituted grand jury. But, that is not the factual situation in Dempsey's prosecution.

The opinion in Evans v. State, 17 Ga.App. 120, 86 S.E. 286 (1915), is directly on point. In Evans, a grand jury was illegally constituted by containing one more than the statutory maximum of twenty-three jurors. When the body was appraised of the illegality, the grand jury

excused one of their body, and the remaining twenty-three attempted to validate this indictment and a number of indictments against other persons for different offenses, by adopting all the indictments en bloc, without hearing testimony at that time, and relying simply upon the testimony adduced before the illegal body which was in session the preceding day․

Id. at 121, 86 S.E. 286. But, as in the case with a grand jury containing a member who is incompetent to serve, “the findings of a body purporting to act as a grand jury but consisting of more than that number are void.” Id. at 120(1), 86 S.E. 286. See Crawford, supra; Betts, supra. Consequently, there was no prior legal proceeding upon which the grand jury could rely. As stated in Evans,

the investigation can not relate back to statements which may have been heard previously by members of the grand jury in their individual capacity, and such statements can not be accepted as a substitute for testimony before the body as legally constituted.

Id. at 121, 86 S.E. 286.

The effect of Prescott's presence as to the first indictment was to nullify the proceedings at which he was purportedly a grand juror. As there was never a proceeding at which a legally constituted grand jury received testimony, the trial court properly quashed indictment number 10–CR–003–DB.

3. The State asserts that the entry of an order of nolle prosequi on indictment number 09–CR–325–MM renders moot any question of the propriety of the trial court's refusal to quash that indictment, addressed in Division 1, supra, of this opinion. That is not so. “[A] case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights․” Collins v. Lombard Corp., 270 Ga. 120, 121(1), 508 S.E.2d 653 (1998). The order of nolle prosequi as to the first indictment does not create an abstract question. “[A]fter a nolle prosequi, the State may reindict a defendant for the crimes at issue ‘within the applicable statute of limitation, or within six months after the entry of the nolle pros if that occurs later.’ [Carlisle v. State, 277 Ga. 99, 101, 586 S.E.2d 240 (2003) ].” Davis v. Wilson, 280 Ga. 29, 622 S.E.2d 325 (2005). Thus, despite the order of nolle prosequi entered as to the first indictment, Dempsey would still be subject to reindictment. Yet, under OCGA § 17–7–53.1,3 he is not subject to reindictment if both indictments against him were quashed. Under these circumstances, the question of whether his motion to quash should have been granted has great effect on his existing rights; if, as we have determined, the indictment should have been quashed, a bar to further prosecution arises.

Judgment affirmed in Case No. S11A1875. Judgment reversed in Case No. S11X1876.

HINES, Justice.

All the Justices concur.

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